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United States Soccer Federation, Inc. v. United States National Soccer Team Players Association

United States Court of Appeals, Seventh Circuit

September 22, 2016

United States Soccer Federation, Inc., Plaintiff-Appellant,
v.
United States National Soccer Team Players Association, Defendant-Appellee.

          Argued March 31, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 9899 - Virginia M. Kendall, Judge.

          Before Manion and Kanne, Circuit Judges and Pepper, District Judge. [*]

          Kanne, Circuit Judge.

         Soccer is called "the beautiful game, "[1] but the collective-bargaining process behind the sport can be ugly. This case matches Plaintiff United States Soccer Federation, Inc. ("US Soccer Federation"), the national governing body for soccer in the United States, against Defendant United States National Soccer Team Players Association ("Players Association"), the labor union for members of the Men's National Team, in a dispute over their current collective bargaining agreement ("CBA") and uniform player agreement ("UPA" and collectively with CBA, "CBA/UPA").

         The present case kicked off in 2013, when the Players Association disapproved the U.S. Soccer Federation's proposed tequila poster advertisement, which contained player images. Counterattacking, the U.S. Soccer Federation issued a notice, declaring that the CBA/UPA does not require Players Association approval for use of player likenesses for six or more players in print creative advertisements by sponsors, based on the express terms of the agreement. Crying foul, the Players Association filed a grievance and demanded arbitration, arguing that the CBA/UPA does require this, based on the past practice of the parties.

         The arbitrator issued an award in favor of the Players Association. The district court confirmed the arbitrator's award and granted summary judgment for the Players Association. The U.S. Soccer Federation appealed. We reverse.

         I. Background

         We begin with a brief synopsis of the relevant provisions of the CBA/UPA for this case. Then, we summarize the pertinent factual background and procedural history.

         A. Key Provisions in the CBA/UPA

         Since 1997, U.S. Soccer Federation and the Players Association have negotiated and executed four CBAs. The current CBA was established in 2011, revised in 2013, and expires in 2018. (R. 41 Ex. B [hereinafter CBA].)

         Article IV of the CBA incorporates the UP A, which binds all members of the Players Association, including the Men's National Team. (R. 41 Ex. B [hereinafter UP A].)

         The current CBA/UPA is constrained by integration and no-modification clauses, as well as a non-waiver provision.[2]The integration and no-modification clauses provide that the CBA/UPA is "deemed the complete agreement between the parties" and "no understanding contained in this Agreement shall be modified, altered or amended, except by a writing signed by the party against whom enforcement is sought." UPA § 13(a); CBA § 7.1. The non-waiver provision states that "failure of either party to insist, in any one or more instances, on the performance of any terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of any rights granted" by the CBA/UPA. UPA § 13(c).

         Article V of the CBA outlines the grievance and arbitration procedure for resolving disputes arising from the "interpretation or application of, or compliance" with the CBA/UPA. The scope of the arbitrator's authority is expressly delineated:

The decision of the Impartial Arbitrator will constitute full, final and complete disposition of the grievance, as the case may be, and will be binding upon the Player(s) involved and the parties to this Agreement; provided, however, that the Impartial Arbitrator will not have the jurisdiction or authority to add to, subtract from, or alter in any way the provisions of this Agreement or any Uniform Player Agreement. Furthermore, the Impartial Arbitrator will not have the jurisdiction or authority to add to, subtract from, or alter in any way the provisions of any exhibit to this Agreement or any exhibit to the Uniform Player Agreement unless there is a conflict or inconsistency between the provisions of the exhibit and this Agreement or any Uniform Player Agreement, in which case the Impartial Arbitrator may conform the exhibit to this Agreement or the Uniform Player Agreement. In resolving grievances, the Impartial Arbitrator has the authority to interpret, apply and determine compliance with any provision of this Agreement, or Uniform Player Agreement or exhibit thereto and to award monetary damages and/or declaratory or injunctive relief.

         CBA § 5.8. In short, an arbitrator "has the authority to interpret, apply and determine compliance with [the CBA/UPA], " but he cannot "add to, subtract from, or alter in any way the provisions of [the CBA/UPA]." Id.

         Finally, the substantive provision at issue in this case is Section 6 of the UP A, which governs the use of player likenesses taken or created during U.S. Soccer Federation activity. Under Section 6(b), "[e]xcept as set forth below, [the U.S. Soccer Federation] may not use or allow others to use Player's Likeness without the agreement of Player or Player's representative." One such exception occurs in Section 6(f)(i), which governs sponsor use of player likenesses for groups of six or more players:

Six or More Players - Use by Federation Sponsor. If Player's Likeness is used by a "Partner" of the Federation (as defined in 6(h)[3]) for any Noncommercial Use or in a Partner's advertising or promotions, and if the advertising, promotion, or Non-commercial Use includes six (6) or more members of any Federation national team (e.g., team poster or collage), Federation will request, but not require, the Partner to make a contribution in an amount to be determined in the Partner's sole and absolute discretion to the applicable Player Pool(s), provided however, with respect to any use by a Partner in a 'Spot' (as defined in 6(h)[4]), prior to such use, Federation shall provide a copy of such Spot to the Players Association for its approval, which approval shall be considered in good faith. Such uses by Partners specifically exclude any Licensing Purposes.

         Section 6(f)(i) divides the use of player likenesses into two categories: (1) non-Spot, which includes non-commercial video and print creatives, and (2) Spot, which is defined as commercial video. For non-Spot advertisements, Section 6(f)(i) provides that the U.S. Soccer Federation "will request, but not require" a sponsor donation to a player pool. For Spot advertisements, Section 6(f)(i) provides that the U.S. Soccer Federation "shall provide a copy of such Spot to the Players Association for its approval."

         B. Factual Background and Procedural History

         From approximately 2001 until 2013, the U.S. Soccer Federation voluntarily submitted print creatives to the Players ...


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